843 P.2d 839 (N.M.App. 1992), 12900, City of Farmington v. Fawcett

Docket Nº:12900.
Citation:843 P.2d 839, 114 N.M. 537, 1992 -NMCA- 075
Opinion Judge:[10] Black
Party Name:CITY OF FARMINGTON, Plaintiff-Appellee, v. Tom FAWCETT, d/b/a Farmington Magazine and Book Store, Defendant-Appellant.
Attorney:Jay Burnham, Deputy City Atty., Farmington, James P. Mueller, Children's Legal Foundation, Phoenix, Ariz., for plaintiff-appellee., Philip B. Davis, Jeffrey J. Buckels, Albuquerque, for defendant-appellant. [7] For Plaintiff-Appellee: JAY BURNHAM, Deputy City Attorney, Farmington, New Mexico, JA...
Judge Panel:CHAVEZ and PICKARD, JJ., concur.
Case Date:June 30, 1992
Court:Court of Appeals of New Mexico

Page 839

843 P.2d 839 (N.M.App. 1992)

114 N.M. 537, 1992 -NMCA- 075

CITY OF FARMINGTON, Plaintiff-Appellee,


Tom FAWCETT, d/b/a Farmington Magazine and Book Store,


No. 12900.

Court of Appeals of New Mexico.

June 30, 1992

Page 840

Certiorari Granted Aug. 14, 1992. Certiorari Quashed Oct. 16, 1992.

Page 841

[114 N.M. 539] Jay Burnham, Deputy City Atty., Farmington, James P. Mueller, Children's Legal Foundation, Phoenix, Ariz., for plaintiff-appellee.

Philip B. Davis, Jeffrey J. Buckels, Albuquerque, for defendant-appellant.


BLACK, Judge.

Defendant appeals his conviction of five counts of dissemination of obscene material in violation of Farmington, New Mexico, Ordinance Number 89-920, Section 21-50.1 (1989) (the Ordinance). He raises four issues on appeal: 1) whether the Farmington Ordinance violates Article II, Section 17 of the New Mexico Constitution, the free speech provision; 2) whether the trial court improperly admitted opinion evidence regarding community standards and improperly instructed the jury on those standards; 3) whether, as a matter of constitutional law, the magazines are patently offensive; and 4) whether there was sufficient evidence that the magazines lack serious literary, artistic, political, or scientific value. We remand for a new trial, based on the district court's improper jury instruction on the community standard.


Defendant operated the Farmington Magazine and Book Store. He sold a wide variety of magazines and books from this outlet, including the five magazines in controversy here: The Best of Club, Forbidden Erotica, Hot Swinging Couples, Over 40, and Swank. The controversy between the City of Farmington (City) and Defendant arose when two City residents investigated Defendant's store for possible violations of the obscenity Ordinance. As a result of this investigation, a complaint was filed in municipal court, and Defendant and one of his employees were convicted of disseminating obscene materials.

Defendant appealed to the district court and received a trial de novo. Prior to trial, Defendant filed a motion to dismiss, alleging that the City Ordinance violated Article II, Section 17 of the New Mexico Constitution. The trial court denied the motion, apparently because it was not timely under the local rules. After hearing testimony and examining the magazines involved, the jury found Defendant guilty of five counts of dissemination of obscene materials.


The City argues that Defendant's failure to timely file his motion to dismiss precludes him from now arguing the issue of the unconstitutionality of the Ordinance. In a criminal prosecution the constitutionality of the statute (or ordinance) pursuant to which the defendant was convicted may be raised for the first time on appeal. State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980). Therefore, even though the motion to dismiss was not denied on its merits below, the constitutionality of the City's obscenity Ordinance may be argued on appeal. See State v. Lujan, 103 N.M. 667, 672-73, 712 P.2d 13, 18-19 (Ct.App.1985), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).

The Farmington Ordinance at issue provides:

(a) No person shall:

(1) Knowingly sell, show or otherwise disseminate in any manner obscene material; or

(2) Knowingly possess obscene material with the intent to sell, show or otherwise disseminate the same.

Page 842

[114 N.M. 540] (b) For the purposes of this section, "obscene material" shall be defined as material, written, pictorial or recorded, which:

(1) Taken as a whole, appeals to the prurient interest in sex as judged by the average person applying local contemporary community standards;

(2) Describes or depicts in a patently offensive way any of the following behavior designed or intended to stimulate sexual excitement: the description, depiction or simulated portrayal of the acts of sodomy, fellatio, cunnilingus, masturbation, excretory functions, ejaculation, sexual intercourse, bestiality, sadism or masochism; and

(3) Taken as a whole, lacks serious literary, artistic, political or scientific value.

A. Standard of Review

In considering any constitutional challenge, we must establish the proper legal rules of construction. There is a presumption that all legislative acts, including municipal ordinances, are constitutional. City of Albuquerque v. Jones, 87 N.M. 486, 535 P.2d 1337 (1975). And it is the duty of the appellate court to uphold such legislation unless satisfied beyond all reasonable doubt that the legislation is outside the constitution. State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986). The burden is therefore upon the party attacking the constitutionality of the enactment to show that the act is invalid. Jones, 87 N.M. at 488, 535 P.2d at 1339.

B. Prior Restraint

Defendant initially argues that Article II, Section 17 of the New Mexico Constitution prohibits all prior restraints on speech and publication, and the City Ordinance constitutes such a prior restraint. That section of our constitution, which is pivotal to this appeal, provides: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press."

We believe Defendant misconstrues the nature of "prior restraint." Prior restraint means only that the government may not enjoin or restrain a particular expression prior to its judicial review, even though the same expression could constitutionally be subject to punishment afterwards. Laurence H. Tribe, American Constitutional Law Sec. 12-34 (2d ed. 1988); Martin H. Redish, The Proper Role of the Prior Restraint Doctrine In First Amendment Theory, 70 Va.L.Rev. 53 (1984); see also Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115 (1st Cir.1981). A municipal anti-obscenity ordinance does not constitute a prior restraint on speech when the municipality has the burden of instituting prompt judicial proceedings and there is no provision for restraint prior to such judicial review. Eastern Books v. Bagnoni, 446 F.Supp. 643 (W.D.Pa.1978); cf. State v. Jackson, 224 Or. 337, 356 P.2d 495 (1960) (statute making it a crime to prepare, publish, sell, distribute, or give away any obscene or indecent matter is not a prior restraint).

C. Free Speech is not Absolute

Defendant next urges us to "hold that there is no exception, whether for obscenity or otherwise, to the absolute right of free publication stated in the first clause of Article II, Section 17." One need only consider this proposition logically to realize it cannot stand. No civilization can survive which allows its press to freely publish troop movements in times of war, or permits its citizens to falsely yell "Fire!" in a crowded theater. Even in a society which cherishes free speech above other personal liberties, life presents situations where such civil liberties must be balanced. See Blount v. TD Publishing Corp., 77 N.M. 384, 388, 423 P.2d 421, 424 (1966).

While the language of Article II, Section 17, unambiguously protects speech on all subjects, our supreme court has recognized that the state may constitutionally regulate the place and manner of such speech. Nall v. Baca, 95 N.M. 783, 626 P.2d 1280 (1980) (nude dancing may be restricted in liquor establishments); Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 600 P.2d 258 (1979) (commercial billboard "speech" may

Page 843

[114 N.M. 541] be regulated),appeal dismissed, 446 U.S. 930, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980). The supreme court has also recognized that the constitutional liberty to speak freely can be limited to the extent it conflicts with other constitutionally protected rights. State ex rel. New Mexico Press Ass'n v. Kaufman, 98 N.M. 261, 648 P.2d 300 (1982) (media's right to free speech may be limited when necessary to guarantee defendant a fair trial).

Moreover, Defendant emphasizes the initial language of Article II, Section 17, and ignores the clear limitation also contained in that section. After granting citizens the right to speak freely, our constitution makes each person "responsible for the abuse of that right." A citizen who "abuses" the right of free speech may be legally liable. See Blount, 77 N.M. at 388, 423 P.2d at 424. Can obscenity be an "abuse" of free speech? We believe it can.

Dicta in various New Mexico cases appear to acknowledge that obscenity may be an abuse of the right to "freely speak, write and publish." In Curry v. Journal Publishing Co., the supreme court said:

The First Amendment to the Constitution of the United States provides that Congress shall make no law abridging the freedom of speech or of the press; the effect of which was to prevent Congress from interfering with such rights as they existed at the time of the adoption of this amendment. Similar provisions are a part of the constitution of each of the forty-eight states. See section 17 of article 2 of the New Mexico Constitution.

"The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals."

41 N.M. 318, 328, 68 P.2d 168, 174-75 (1937) (emphasis added) (quoting 2 Thomas M. Cooley, A Treatise on the Constitutional Limitations 886 (8th ed. 1927)).

Much more recently in State v. Gattis, 105 N.M. 194, 730 P.2d 497...

To continue reading